Kerala High Court
Sulaiman vs Sharina on 31 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 31ST DAY OF MARCH 2023 / 10TH CHAITHRA, 1945
OP (FC) NO. 69 OF 2023
AGAINST THE ORDER DATED 17.09.2022 IN E.A.NO.66 OF 2015
IN E.P.NO.11 OF 2014 IN O.P.NO.588 OF 2010 OF THE FAMILY
COURT, PALAKKAD
PETITIONER/PETITIONER/RESPONDENT:
SULAIMAN, AGED 71 YEARS, S/O KATTUBAVA RAWTHAR,
PERUVAYAL VEEDU, AAYAKADU, VADAKKENCHERY,
ALATHUR TALUK, PALAKKAD, PIN - 678683
BY ADVS.SAIJO HASSAN
NAGARAJ NARAYANAN
RAFEEK. V.K.
AATHIRA SUNNY
NEEMA NEERACKAL
BINCY JOB
AMBADI DINESH L.K.
BENOJ C AUGUSTIN
K.S. SANDEEP
RESPONDENTS/RESPONDENTS/PETITIONERS:
1 SHARINA, AGED 33 YEARS, D/O SULAIMAN, PALATHARA
VEEDU, THOLANNUR POST, ALATHUR TALUK, PALAKKAD,
PIN - 678722
2 JASMINE, AGED 32 YEARS, D/O SULAIMAN, PALATHARA
VEEDU, THOLANNUR POST, ALATHUR TALUK, PALAKKAD,
PIN - 678722
BY ADVS.P.B.SUBRAMANYAN P B
P.B.KRISHNAN(K/1193/1994)
SABU GEORGE(K/000711/1998)
MANU VYASAN PETER(K/000652/2013)
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 31.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
-2-
O.P.(FC)No.69 of 2023
JUDGMENT
Anil K. Narendran, J.
The petitioner, who is the judgment debtor in E.P.No.11 of
2014 in O.P.No.588 of 2010 on the file of the Family Court,
Palakkad, has filed this original petition invoking the
supervisory jurisdiction of this Court under Article 227 of the
Constitution of India, challenging the order dated 17.09.2022
in E.A.No.66 of 2015 in E.P.No.11 of 2014 in O.P.No.588 of
2010 of the Family Court, Palakkad.
2. On 06.02.2023, when this original petition came up
for admission, this Court issued notice on admission to the
respondents by speed post, returnable within four weeks. This
Court passed an interim order on 06.02.2023, which reads
thus;
"In case actual delivery is yet to be effected, there will
be an interim stay as prayed for, for a period of one
month."
3. Today, when this matter is taken up for
consideration, the respondents/decree holders enter
appearance through counsel.
4. Heard the learned counsel for the petitioner and
also the learned counsel for the respondents.
O.P.(FC)No.69 of 2023
5. The learned counsel for the respondents would raise
the question of maintainability of this original petition by
contending that, in view of the provisions under Order XLIII
Rule (1)(j) of the Code of Civil Procedure, 1908, the impugned
order is appealable before this Court under Section 19(1) of
the Family Courts Act, 1984. The learned counsel would also
place reliance on the decision of this Court in Jineev v. Sherly
Mathew [2011 (2) KLT 738].
6. The learned counsel for the petitioner would submit
that in view of the question of maintainability of the original
petition raised by the learned counsel for the respondents, the
petitioner shall file an appeal before this Court under Section
19(1) of the Family Courts Act challenging the order dated
17.09.2022 of the Family Court, which is impugned in this
original petition. The learned counsel would submit that the
execution petition now stands posted before the Family Court
tomorrow (01.04.2023) for delivery.
Having considered the submissions made by the learned
counsel on both sides, while dismissing this original petition as
not maintainable, without prejudice to the right of the
petitioner to challenge the order dated 17.09.2022 in
O.P.(FC)No.69 of 2023
E.A.No.66 of 2015 in E.P.No.11 of 2014 in O.P.No.588 of 2010
of the Family Court, Palakkad, in an appeal under Section
19(1) of the Family Courts Act, we deem it appropriate to
direct the Family Court to defer actual delivery of the property,
for a period of two weeks.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
AV/31/3
O.P.(FC)No.69 of 2023
APPENDIX OF OP (FC) 69/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE JUDGMENT DATED
04.11.2013 IN OP NO. 588 OF 2010
PASSED BY THE FAMILY COURT, PALAKKAD
Exhibit P2 TRUE COPY OF THE INTERIM ORDER IN IA
530/2014 IN MAT APPEAL NO.150/2014
DATED 03.06.2015 OF HON'BLE HIGH
COURT OF KERALA
Exhibit P3 TRUE COPY OF THE RECEIPT DATED
24.06.2015 EVIDENCING DEPOSIT OF
RS.1,50,000/
Exhibit P4 CERTIFIED COPY OF THE ORDER DATED
25.11.2020 IN E.A 101/2019 IN E.P NO.
11/2014 IN O.P NO.588/2010 CONFIRMING
SALE AND ISSUE OF SALE CERTIFICATE TO
THE RESPONDENTS
Exhibit P5 TRUE COPY OF THE JUDGMENT DATED
26.03.2019 IN MAT APPL. NO. 150/2014
PASSED BY THIS HON'BLE HIGH COURT OF
KERALA
Exhibit P6 CERTIFIED COPY OF THE JUDGMENT IN
O.P.(FC) NO.484/21 DATED 02.02.2022 OF
HON'BLE HIGH COURT OF KERALA
Exhibit P7 CERTIFIED COPY OF THE ORDER IN
E.A.65/15 DATED 15.07.2022 OF HON'BLE
FAMILY COURT PALAKKAD
Exhibit P8 CERTIFIED COPY OF THE ORDER DATED
17.09.2022 IN E.A.NO.49/22 IN
E.A.NO66/2015 IN E.P.NO.11/2014 IN
O.P.NO.588/2010 PASSED BY THE FAMILY
COURT PALAKKAD
Exhibit P8A TRUE COPY OF THE PETITION FILED BY THE
PETITIONER DATED 23.07.2015 IN E.A
66/2015 IN E.P 11/2014 BEFORE THE
O.P.(FC)No.69 of 2023
FAMILY COURT, PALAKKAD
Exhibit P8B TRUE COPY OF THE OBJECTIONS FILED BY
THE RESPONDENTS HEREIN DATED NIL IN
E.A 66/2015 IN E.P 11/2014 BEFORE THE
FAMILY COURT, PALAKKAD
Exhibit P9 CERTIFIED COPY OF THE ORDER DATED
17.09.2022 OF HON'BLE FAMILY COURT
PALAKKAD IN E.A 66/2015 IN E.P 11/14
